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Copyright notice: digital images, photographs and the internet

The Intellectual Property Office has issued new guidance on copyright in the UK which addresses the common practice by museums (and others) of taking photographs and scans of out-of-copyright works and claiming copyright in the new surrogate images. This has always been a legal grey area, but government advice now clearly suggests that such images should not be considered worthy of copyright protection.

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’.

This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

Read the guidance on the GOV.UK website